JOH v JEH - [2007] WASCA 214

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: JOH -v- JEH [2007] WASCA 214

CORAM: STEYTLER P
McLURE JA
PULLIN JA

HEARD: 4 OCTOBER 2007

DELIVERED : 4 OCTOBER 2007

PUBLISHED : 15 OCTOBER 2007

FILE NO/S: CACV 122 of 2007

BETWEEN: JOH
Appellant
AND
JEH
Respondent

ON APPEAL FROM:
Jurisdiction              :  FAMILY COURT OF WESTERN AUSTRALIA
Coram  :MARTIN J
Citation  :JOH -v- JEH [2007] FCWA 101
File No  :PT 6560 of 2006

Catchwords:

Family law - Children - Parenting orders - Residence orders - Relocation - Adequacy of trial judge's reasons for allowing mother to relocate with child to United States - Whether trial judge failed to consider ordering child spend equal time with both parents as required by Family Court Act 1997 (WA) s 89AA

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Dr A F Dickey QC
Respondent: Mr S R Moncrieff

Solicitors:

Appellant: Crossing Family Lawyers
Respondent: O'Sullivan Davies

Case(s) referred to in judgment(s):

A v A: Relocation Approach [2000] FamCA 751; (2000) FLC 93-035
AK v The State of Western Australia [2006] WASCA 245
AMS v AIF [1999] HCA 26; (1999) CLR 160
Goode v Goode [2006] FamCA 1346; (2006) 206 FLR 212
In Marriage of Bennett (1990) 102 FLR 370
Madden v Madden [2006] FamCA 1391; (2006) FLC 93-294
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273
Public Service Board (NSW) v Osmond (1986) 159 CLR 656
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
U v U [2002] HCA 36; (2002) 211 CLR 238

JUDGMENT OF THE COURT: By this appeal the appellant challenges parenting orders made by Martin J in the Family Court of Western Australia. At the conclusion of argument we dismissed the appeal. These are our reasons.
The parties lived together between March 2000 and January 2005. They have one child, born on 21 April 2002. The appellant, the child's father, is a legal practitioner. The respondent, the child's mother, is a school teacher. Each of the parents has formed another relationship. The father has been in a relationship with a woman to whom I shall refer as J' since December 2005. The respondent has been in a relationship with a man to whom I shall refer as 'R' since shortly thereafter.
On 29 November 2006 the appellant lodged an application for parenting orders to the effect that the child live with the parties in an equal shared parenting arrangement and that they should have equal shared parental responsibility for the child.
On 3 January 2007 the respondent (who had married R on 29 November 2006) lodged her response. She sought an order that she have parental responsibility, that the child reside with her and that she have liberty to relocate his residence to California in the United States of America where R lives. R is a lawyer, practising in Los Angeles.
The trial Judge made orders, amongst others, to the effect that the parties were to have equal shared parental responsibility for the child, that the child live with the mother and that the mother have liberty to relocate the child's residence to California on specified conditions. Those conditions were designed, in part, to ensure that there would be a continuing relationship between the appellant and the child.
The appellant has appealed against the judgment of Martin J. There are two grounds of appeal. We will come to them after dealing with the judgment of the trial Judge.

Judgment of the trial Judge

The trial Judge structured her judgment in the following way.
First, she set out, in brief terms, the issues that she was required to consider. She then set out, in considerable detail, the background to those issues. In the course of doing so, she looked closely at relevant events during and subsequent to the period in which the parties had lived together. It is clear from what she said that she accepted a number of propositions in the course of doing so. The more relevant of these are that:
(a)the respondent was the child's primary caregiver during the relationship;
(b)after separation the respondent continued to be the child's primary caregiver;
(c)the respondent had taken the child to the USA and Mexico for a period of five months shortly after the separation;
(d)the respondent had again taken the child to the USA for a period of five months commencing in mid‑July 2006;
(e)during the latter period the child attended pre‑school in California successfully;
(f)the respondent, the child and R got on well together during this time; and
(g)the respondent was genuinely caring about the child's relationship with his father and accepting of the fact that the appellant was important to the child.
The trial Judge next examined the proposals that had respectively been advanced by the appellant and the respondent. The appellant's preferred position was that the respondent and the child remained in Perth and that the child should live with him on a 'week about basis'. In an affidavit prepared for the purposes of the trial he advanced alternative proposals in case his favoured proposal should not be accepted. The respondent's proposal was, as I have foreshadowed, that she and the child should be permitted to relocate to California and that detailed arrangements should be made for the child to visit the appellant, or vice versa, and also for contact between the two to be maintained by telephone, email, webcam and mail. She, too, put up an alternative proposal in case her favoured proposal should not be accepted.
Both parties agreed that, whether the respondent was or was not permitted to relocate, the parties should have equal shared parental responsibility for the child.
The trial Judge then dealt briefly with the parties' respective cases before turning to the legal position.
She referred, in this last respect, to s 66B of the Family Court Act 1997 (WA) (the Act), which sets out the objects of Pt V (dealing with children) and the principles underlying those objects. She said that, pursuant to s 66A of the Act, when deciding whether to make a particular parenting order in relation to a child a court must regard the best interests of the child as paramount and, in determining what is in a child's best interests, the court must consider the matters set out in s 66C of the Act [96].
The trial Judge also referred, at considerable length, to what had been said in A v A: Relocation Approach [2000] FamCA 751; (2000) FLC 93-035. In that case the Full Court of the Family Court (Nicholson CJ, Ellis and Coleman JJ) summarised the approach that should be adopted by a trial judge in deciding a parenting case involving a proposal to relocate the residence of a child either within Australia or overseas [108]. She also referred to U v U [2002] HCA 36; (2002) 211 CLR 238. That was a decision of the High Court on an appeal from the Full Court of the Family Court of Australia, which had refused to make orders permitting the appellant mother to relocate residence with her child from Australia to India. Then, after referring to a number of other issues that are not presently relevant, she recognised that amendments that had been made to the Act in 2006 evinced a legislative intent in favour of substantial involvement of both parents in their children's lives, both as to parental responsibility and as to time spent with children. She referred, in this last respect, to what had been said by the Full Court of the Family Court in Goode v Goode [2006] FamCA 1346; (2006) 206 FLR 212.
The trial Judge next worked her way through each of the considerations required by s 66C of the Act to be taken into account in determining what is in a child's best interests. In the course of doing so, she made a number of findings that are presently relevant.
The first of these is that it was probable that the child would be able to maintain a meaningful relationship with the appellant if he saw the appellant every five to six months as proposed by the respondent. However, the trial Judge said that it would be easier, or preferable, for the child to maintain his meaningful relationship with his father through seeing him much more regularly, as the father's proposal would entail [114]. Next, she found that the child had a good relationship with each of his parents but was probably slightly closer to his mother than to his father [118]. She said that the child was very close to his mother [119]. She also found that the child had a good relationship with the parties' respective partners and with members of his extended family and others, including R's sister and his niece in the USA [123]. Next, the trial Judge accepted that, while the respondent had facilitated and encouraged the child's relationship with the appellant, she regarded her relationship with the child as being more important to him than his relationship with his father. The trial Judge said that this was understandable having regard to the fact that she had been the child's primary, and sometimes sole, caregiver [127]. She also made the following finding:
[The child] has been separated from his father in the past, in 2005 for nearly five months, and in 2006, for five months. While it is accepted that, after the first separation, [the child] had some difficulty leaving his mother to spend time with [the appellant], it is accepted that after the second more lengthy separation, [the child] quickly adjusted to spending substantial time with his father. [130]
She went on to say that there was no evidence to suggest that, at present, the child had not coped well with being separated from his father [134].
The trial Judge recognised that there were very significant practical difficulties, and substantial expense involved, in the event that the respondent relocated to the USA [136]. She examined, in some detail, the manner in which it was proposed that these difficulties would be overcome and also the manner in which it was proposed that the expense involved would be met.
The trial Judge next found that both parties had the capacity to provide for the emotional, intellectual and financial needs of the child [139]. She accepted that both were responsible and caring parents [158]. She also accepted that the respondent had involved the appellant in the decision‑making about the child, including the trips to America, and that she had facilitated his spending time with, and communicating with, the child.
Then, under the heading 'Conclusion', the trial Judge again addressed the principal issue to be decided and made a number of findings in respect of it. She said, as regards the principal issue:
The principal issue to be decided is whether, having regard to the best interests of the child as the paramount consideration, and having regard to all the relevant factors and the parties' circumstances and proposals, orders proposed by the mother or father should be made.
It is agreed that the parties are to have equal shared parental responsibility. Section 89AA of the Family Court Act provides that if a child's parents are to have equal shared parental responsibility for the child, the court must consider whether the child spending equal time with each of the parents would be in the best interests of the child, and reasonably practicable, and if it is, make an order to provide for the child to spend equal time with each of the parents.
If not, the court must consider whether the child spending substantial and significant time with each parent, as defined in s 89AA(3), is reasonably practicable and, if it is, consider making an order to provide for the child to spend such time with each of the parents. [164] ‑ [166]
The trial Judge said, next, that the mother's position was that she would be 'devastated' if required to live separately from R, for whom it was not reasonably practicable to move to Perth [169]. She found, once again, that each of the appellant and the respondent was a caring and committed parent who had provided excellent care for the child. She also found that each of J and R was an appropriate person to live with the child. She went on to say:
I am satisfied that both parties' proposals for the day‑to-day care of [the child], whether in the United States or Australia, are very satisfactory, and that he will be well looked after whatever I decide. I am satisfied that both parents are capable of providing properly for all [the child's] needs on a day to day basis, but that [the respondent] is the more competent parent, as she has had more experience of caring for all [the child's] needs, as primary caregiver prior to separation, and since separation, and, at times, sole caregiver while she has been overseas. However, I am satisfied that any difficulties while the child is with [the appellant] will be able to be properly overcome with [J's] assistance.
I am satisfied it is clear that [the child] has settled well into life in California in the months that he has lived there, and that on his return after his last lengthy visit, he readily adapted to life in Western Australia and to having his father much more directly involved in his life.
I am also satisfied that both parties are in committed relationships which are likely to continue, at least for a time. [177] ‑ [179]
Having dealt with a number of other matters that are not presently relevant, the trial Judge went on to say:
As to the very important consideration as to whether the child will maintain a meaningful relationship with his father if living in California, I am satisfied that the mother, while believing that the child's relationship with her is more important than his relationship with his father, genuinely accepts that [the child's] relationship with [the appellant] is important, and, whether she is living in Perth or California, she will continue to promote, and facilitate, the child's relationship with his father, even though her actions in seeking to move to the other side of the world will limit the frequency of the child's direct contact.
I accept that she made appropriate arrangements for the child's ongoing contact with his father during the absences in 2005 and 2006, and she accepted the importance of the child's relationship with his father in agreeing to a nine day/five day shared care regime, pending the determination of the proceedings. I am satisfied that the mother will comply with any orders for the child to spend time with his father, and that she is likely to return with him to Perth, which is in his interests, as she has friends and family here, in any event.
I am also satisfied that it is reasonably practicable for [the child] to visit Perth for two fairly lengthy periods each year, having regard to the mother's financial circumstances, in particular, whether or not she has ceased work.
While it is not ideal for the child to be separated from direct contact with his father for several months at a time, the child has had two periods of lengthy separation from his father and the evidence is clear that he has been able to maintain a meaningful relationship with him. The father frankly admits that he agreed to the first trip, partly because he felt guilty about the separation, but also he thought there would be some benefits for [the child]. I accept that he was against the second trip extending beyond three months, but, obviously, not to the extent that he was prepared to take legal action to prevent it. I consider it likely that, even had he taken such action, the mother would have been permitted to travel to the United States at that time, on a temporary basis, but probably with specific time limits and security required for her return. It is to her credit she returned voluntarily and, appropriately, took legal action.
I have therefore concluded, that having regard to all the factors to which I have referred with the best interests of the child as being the paramount, but not the only consideration, and the respective proposals of both parents that [the child] should continue to live with his mother, and that she be permitted to move to California with the child, provided she ensures that the child retains his meaningful relationship with [the appellant] through two, fairly lengthy visits each year, and by indirect means. [187] ‑ [191]
Finally, after specifying what should be dealt with in the detail of the orders to be made by her, the trial Judge said:
I will hear submissions as to the appropriate time of departure, but having regard to the child's age, and the fact he does have a meaningful relationship with his father, and the mother's genuine and reasonable desire as the parent with whom the child has primarily lived, to rejoin her partner in California, I do not accept it is in the child's best interests for any departure to be delayed for … an extensive period. [193]

Ground 1 - reasons

Ground 1 contends that the trial Judge failed to give sufficient reasons for her decision to permit the mother to move to California with the child. There are two bases for that contention. The first is that the trial Judge failed to explain why the respondent's proposals were to be preferred to those that had been put up on behalf of the appellant. The second is that, although she addressed the matters that were required to be considered by her pursuant to s 66C of the Family Court Act 1997 (WA) (Act), she failed to indicate to which of them she attached greater significance or how these matters 'balanced out'.
Counsel for the appellant opened his submissions in support of this ground by relying upon what had been said by the Full Court of the Family Court in In Marriage of Bennett (1990) 102 FLR 370, 389 ‑ 390. There, the Full Court (Nicholson CJ, Simpson and Finn JJ) applied well‑known principles enunciated in such cases as Public Service Board (NSW) v Osmond (1986) 159 CLR 656 and Sun Alliance Insurance Ltd v Massoud [1989] VR 8. The Full Court quoted from the judgment of Gray J in the second of those cases, where he said:
The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if:
(a)the Appeal Court is unable to ascertain the reasoning upon which the decision is based; or
(b)justice is not seen to have been done.
The two-above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the Appeal Court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected. (18)
The Full Court went on to say:
In the absence of adequate reasons, the Full Court is not obliged to uphold a judgment merely because the result may be said to fall within the wide ambit of the judge's discretion. In general, the appellate Court should be able to discern either expressly or by implication the path by which the result has been reached.
We stress that we are not suggesting that reasons must be extensive. Their adequacy must frequently be judged by reference to the issues raised by the parties at trial. In the present case her Honour's reasons were voluminous and carefully traversed the evidence, and contained her Honour's findings about disputed questions of fact, and her assessment of the relative strengths and weaknesses of the parties. The defect in her Honour's judgment, as we see it, was that, having done this, she moved directly to a conclusion without indicating the process of reasoning which led her to that conclusion. Such a process of reasoning could have been given in a relatively short compass, and would have enabled the Court to have examined the validity of her Honour's reasoning.
…
The important thing is that the appellate Court must be placed in the position of being able to follow the trial judge's line of reasoning, as must the parties, if they are to be satisfied that justice has been done.

Those propositions are uncontroversial: see Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 [26] ‑ [29]; AK v The State of Western Australia [2006] WASCA 245 [66] and Madden v Madden [2006] FamCA 1391; (2006) FLC 93-294 [102] ‑ [104]. They are said to have been departed from, in this case, in precisely the same respect as that identified in Bennett.
Counsel for the appellant also relied upon what was said in A v A [82] where the Full Court of the Family Court of Australia suggested that the following steps should be taken by a court in determining a parenting case involving a proposal to relocate the residence of a child:
1.[I]dentify the relevant competing proposals;
2.For each relevant s68F(2) factor, [this is a reference to the provision in the Family Law Act 1975 (Cth) that is equivalent to s 66C of the Act] set out the relevant evidence and the submissions with particular attention to how each proposal is said to have advantages and/or disadvantages for that factor and make findings on each factor as the Court thinks fit having regard to s60B [the section of the Family Law Act that is equivalent to s 66 of the Act];
3.On the basis of the prior steps of analysis, determine and explain why one of the proposals is to be preferred, having regard to the principle that the child’s best interests are the paramount but not sole consideration. [82] (and see also [108])
The Court in that case also said that, in determining a case of this kind, a court must consider all the relevant matters referred to in s 60B and s 68F(2) 'and then indicate to which of those matters it has attached greater significance and how those relevant matters balance out' [106].
Counsel for the appellant concedes that steps 1 and 2 identified in A v A were followed by the trial Judge, but contends that she failed to explain why the respondent's proposal was to be preferred. He contends also that, although the trial Judge considered all of the relevant matters referred to in s 66 and s 66C, she did not indicate to which of those matters she had attached greater significance or how, in her opinion, those matters balanced out.
In considering this submission, and accepting that reasons in a case such as this must enable an appeal court to follow the reasoning process upon which the decision was based, it is important also to bear in mind that, as Kirby J pointed out in AMS v AIF [1999] HCA 26; (1999) CLR 160:
[A]n appellate court, invited to review the exercise of discretion at first instance will avoid an overly critical, or pernickety, analysis of the primary judge's reasons, given the large element of judgment, discretion and intuition which is involved. Only if a material error of the kind warranting disturbance of a discretionary decision is established is the appellate court authorised to set aside the primary decision, to substitute its own exercise of discretion or to require that it be re-exercised on a retrial. [150] (footnotes omitted)
In our opinion, only an over‑critical analysis of the primary Judge's reasons would lead to the conclusion that her reasoning cannot be ascertained in the respects contended for. While her reasoning process was not, with respect, spelled out as clearly as it might have been, we consider that it emerged sufficiently from the passages of the judgment to which we have earlier referred. These reveal that:
(a)the trial Judge closely examined each of the relevant considerations (as has been conceded);
(b)she was aware that the best interest of the child was the paramount consideration [98];
(c)she accepted that there was a legislative intent in favour of a substantial involvement of both parents in their children's lives, both as to parental responsibility and as to the time spent with the children [102];
(d)she found that the mother would be devastated if she was unable to live with her husband;
(e)she found that the child was very close to his mother, and closer to her than to his father;
(f)she said, repeatedly, that the mother had been the child's primary caregiver;
(g)she stressed that the mother had facilitated and encouraged the father's relationship with the child;
(h)she said that there was no evidence to suggest that, at present, the child had not coped well with being separated from his father; and
(i)she plainly considered that, when regard is had for these considerations (having found that the other considerations were either neutral or, to the extent that they presented a problem, capable of being overcome), the appropriate disposition was that the mother and child should be permitted to relocate.
It is important to emphasize that the trial Judge expressly recognised, at more than one point in her judgment, that the principal issue to be decided by her was 'whether, having regard to the best interests of the child as the paramount consideration, and having regard to all the relevant factors and the parties' circumstances and proposals, orders proposed by the mother or father should be made' [164]. It is also important to mention that it is obvious from what she said that, in reaching her conclusion that this issue, approached in that way, was best resolved by permitting the mother to relocate with the child the trial Judge was influenced by the considerations that she particularly emphasised. As will be apparent, these included the fact that the child was closer to the mother than to the father, the fact that the trial Judge was satisfied that the child could maintain a meaningful relationship with his father if living in California and the fact that the mother would do all that she reasonably could to foster this. She was also influenced by the fact that the child had settled well in California during the time that he had lived there and that he had suffered no ill‑effects from the separation from his father.
These considerations were all capable of supporting the trial Judge's decision (as was properly acknowledged by counsel for the appellant) and, as we have said, the fact that the trial Judge regarded them as factors tipping the balance in favour of the mother's proposal sufficiently appears from her judgment.
Ground 1 consequently failed.

Ground 2 - s 89AA(1) of the Act

The second ground of appeal is that the trial Judge, having accepted that the parties should have equal shared parental responsibility for the child, erred by not considering, as required by s 89AA(1) of the Act, whether the child spending equal time with each of the parents would be in the best interests of the child and whether the child spending equal time with each of the parents was reasonably practicable.
Section 89AA(1) reads as follows:
(1)If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must ‑
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
The trial Judge was plainly aware of these requirements. She dealt with them, expressly, in [165] ‑ [166] of her judgment, referred to earlier in these reasons. However, s 89AA(1)(c) only requires the court to consider making an order to provide for the child to spend equal time with each of the parents if each of the requirements in s 89AA(1)(a) and s 89AA(1)(b) is satisfied. It is plain that, the trial Judge considered that s 89AA(1)(b) was not satisfied and, consequently, that there was no need to address the issue raised by s 89AA(1)(c).
In our respectful opinion, that was a logical way of dealing with the requirements of s 89AA(1). The trial Judge made no error in that respect.
Ground 2 consequently failed.

Conclusion

It was for these reasons that we dismissed the appeal at the conclusion of argument at the hearing of the appeal.